Snapshot
- A majority of the High Court has imposed a non-delegable duty of care on a Diocese in connection with the sexual abuse of a child whilst under the care of one of its priests, which significantly increases institutional exposure to child sexual abuse claims.
- Solicitors acting for claimants should nevertheless exercise caution in advising clients pursuing a non-delegable duty of care claim in this context—the existence of any such duty remains heavily dependent on the particular facts.
- Solicitors should continue monitoring legislative reform in the institutional liability context, with claimant-friendly reforms to the establishment of vicarious liability under consideration in multiple (but not all) Australian jurisdictions.
The High Court of Australia has delivered yet another instructive judgment for solicitors working in the ever-dynamic area of institutional liability law. Having previously dealt with issues such as permanent stays and vicarious liability in the institutional abuse context, the majority of the High Court in AA v Trustees of the Roman Catholic Church for the Diocese of Maitland-Newcastle [2026] HCA 2 imposed a non-delegable duty of care on the Diocese in the circumstances (which it also found was breached).
Recent High Court decisions, along with statutory reforms on vicarious liability in certain Australian jurisdictions, highlight the need for solicitors to give close and ongoing attention to developments in institutional liability law. This will ensure their advice to clients is fulsome, up-to-date and factoring in the latest strategic considerations.
